Defeasibility of Enforcement Discretion

As I explained in my last substantive post, I believe the Constitution prescribes two baseline presumptions regarding the scope of executive enforcement discretion — a presumption in favor of case-by-case non-enforcement authority, and a presumption against categorical or prospective non-enforcement for policy reasons.

The boundary between case-by-case and categorical or prospective non-enforcement admittedly may not always be clear. I’ll return later to some examples to illustrate the distinction. But in this post I want to address the question of defeasibility.

In my view, the scope of enforcement discretion is ultimately almost completely up to Congress. The presumptions set the baseline default rules, but Congress can expand or contract the scope of executive non-enforcement discretion.

In terms of expansion, the most extreme case would be a law authorizing executive suspension of particular statutory provisions. Such statutory “waiver” provisions seem to be becoming more common, but there have been examples throughout the country’s history, and the Supreme Court has generally upheld them.

Under my framework, such waiver provisions present no separation-of-powers problem, provided the statutory authorization for the waiver is sufficiently clear. As members of Congress recognized in debates over a waiver provision in an 1807 law, “authorization by law to exercise a discretionary suspension of a law” arguably raises none of the historical concerns regarding the royal suspending power, as any suspension of the law under such a statute is based on statutory authority and not some extra-legal executive prerogative.

At the other extreme, I also believe Congress can go so far as to impose enforcement guidelines, or even mandate prosecution if specified criteria are met.

There is one hard limit on this congressional power to restrict discretion: I don’t think Congress can compel prosecution of someone whom the executive branch judges to be factually innocent of the statutory offense. Such an enforcement action would not be “faithful” execution of the laws, and legislation compelling it would be tantamount to a bill of attainder.

Short of such extreme legislation, however, I think Congress has free reign. To the extent this conclusion seems counterintuitive, I believe that’s so only because we’re so used everyone wanting prosecutors to exercise a lot of discretion (for reasons I explained two posts ago).

In fact, although there is broad language to the contrary in some opinions, the most pertinent judicial and executive branch authority supports my view. An 1837 Attorney General opinion addressed a statutory scheme “intended to take away all discretion” from enforcement officials without suggesting any constitutional infirmity. A 1911 Supreme Court opinion likewise suggested no difficulty with a statutory scheme that “creat[ed] a condition where the district attorney is compelled to prosecute without delay.”

Even modern OLC opinions have generally been careful to assert only the very narrow preclusive prerogative I’ve identified — they’ve claimed only (as a 1984 opinion puts it) that “Congress may not direct the Executive to prosecute a particular individual without leaving any discretion to the Executive to determine whether a violation of the law has occurred.” Just this year, the D.C. Circuit held that a particular civil regulatory statute conferred no “prosecutorial discretion” on the FDA to decline enforcement of import restrictions with respect to certain drugs.

So both my presumptions are defeasible. Congress can override them and expand or contract discretion.

But Congress has to take action to do so. In the absence of such congressional override, the Constitution prescribes only the limited range of non-enforcement discretion prescribed by the two presumptions.